In re Herald, Primeo and Thema Funds Securities Litigation

Filing 361

ENDORSED LETTER addressed to Judge Richard M. Berman from Francis A. Bottini, Jr. dated 1/5/2012 re: We write to request that the Court hold a pre-motion conference for Mr. Davis's anticipated motion under Rule 59(e) and 60 of the Federal Rules of Civil Procedure to amend the December 12, 2011 judgment to request entry of final judgment pursuant to Rule 54(b) as to all Defendants, except Defendants Peter Madoff, Andrew Madoff, and Mark Madoff (the "Madoff Defendants"). ENDORSEMENT: Def response, if any, to be submitted jointly + on or before 1/23/12. (Signed by Judge Richard M. Berman on 1/9/2012) (lmb)

CHAPIN FITZGERALD SULLIVAN &

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MEMO ENDORSED
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January 5, 2012

BY FEDERAL EXPRESS
The Honorable Richard M. Berman
United States District Court for the
Southern District of New York
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007-1312
Re:

Dear Judge Berman:

On behalf of Lead Plaintiff Neville Seymour Davis, we write to
pre-motion conference for Mr. Davis's anticipated motion under Rules

re~uest that the Court hold a

59~e) and 60 of the Federal

Rules of Civil Procedure to amend the December 12, 2011 judgment (the

'~]udgment") to request

entry offinal judgment pursuant to Rule 54(b) as to all defendants,l except lDefendants Peter
Madoff, Andrew Madoff, and Mark Madoff (the "Madoff Defendants").: Iwe believe this requested
relief is fully consistent with the Court's stated intention to enter a

judgme~t and close the case as to

all Dismissed Defendants. In the alternative, we request that the Court aniend the Judgment sua

~~3

l'

1 The defendants who are dismissed in the Judgment are collective .. l1'eferred to as the
"Dismissed Defendants."

2 The Court has discretionary authority to make the requested ame~Qments. See Curtiss­
Wright Corp. Ii. Gen. Eke. Co., 446 U.S. 1,12 (1980) (district courts have diS~retiOn under Rule 54(b»;
SlMicroeledronies, N. V. v. Credit Suisse Sei: (USA) LI...C, 648 F.3d 68, 82 (2d Cir. 2011) (Rule 59(e»);
Ruotolo v. City rifNew York, 514 F.3d 184, 191 (2d Cir. 2008) (Rule 60(b».

:> See Bank of Unt'olnwood t'. Fed. Leasing, Inc., 622 F.2d 944, 948 n.3 (7th Cir. 1980) (district

courts may raise Rule 54(b) issues slla sponte); Burnam v. Amaro Container Co. I 138 F.2d 1230, 1232

(11 th Cir. 1984) (Rule 59(e»; McDowell v. CekbreZi!, 310 F.2d 43, 44 (5th qr., 1962) (Rule 60(b».

SSO Wac: C S~t. Sui~ 2000 I San Diego. CA 92101

'l'd: 619241.4810 l·'la;::: 619.9555311
www..c&blaw.com

The Honorable Richard M. Bennan
January 5,2012
Page 2

I.

Rule 54(b) Applies Because The Judgment Resolves Fewer Tpan All Of Mr. Davis's
Claims, But Ends The Litigation For The Dismissed Defendants In This Court
Rule 54(b) provides an exception to the final judgment rule by allotmg district courts to

designate a judgment as final

and thus appealable - even though the

jUd~ent disposes of fewer

than all of the claims in an action. FED. R. CrV. P. 54(b). The Second Circp,it has "repeatedly
,

stressed the importance of strict adherence to the certification requirement of Rule 54(b)." Int'l

Controls Corp. v. Vesco, 535 F.2d 742, 747 (2d Cir. 1976). Thus, a judgment tesolving some, but not
all, of the claims is interlocutory, absent the district court's express

certific~tion

that there is "no just

reason for delay" for entry of afina/iudgment. HBE Leasing Corp., v. Frank 48 F.3d 623, 632 (2d
r
Cir. 1995). In addition to merely repeating the "no just reason for delay" linguage, the district court

must provide a "reasoned explanation for such detennination." Id
District courts have broad discretion to issue Rule 54(b) certificatilns. Curtiss-Wright, 446
U.S. at 12-13. Certifications may be re versed only if the district court is "Tearly unreasonable." ld
at 10. Ginett v. Computer Task Group, Inc. sets forth a three-prong test to gui8.e the district courts'
exercise of discretion:

.

[llo have a final judgment under [Rule 54(b)], (1) mUltiPleJlaimsor
multiple parties must be present, (2) at least one claim, or th rights
and liabilities of at least one party, must be finally decided . ithin the
meaning of28 U.S.c. § 1291, and (3) the district court musf make
"an express detennination that there is no just reason for d~lay" and
.
expressly direct the clerk to enter judgment.
962 F.2d 1085, 1091 (2d Cir. 1992) (emphasis original).
Here, because factors (1) and (2) are clearly present, Rule 54(b) is applicable. See id. With
i

respect to factor (1), the Amended Class Action Complaint asserts 24 claims against dozens of

defendan". See Dkt. No. 76. With respect to factor (2), the Judgment res Jives all claum agaimt the
Dismissed Defendants based on forum non ronveniens and preempt10n under

~he Secuntles Lmganon

Unifonn Standards Act of 1998 ("SLUSA"), Dkt. No. 360 at 2, and thus ehds the litigation in this

The Honorable Richard M. Berman
January 5, 2012
Page 3
Court for those defendants. See Romano v. Kazacos, 609 F.3d 512, 520 (2d <tir. 2010) (characterizing
SLUSA preemption as a "jurisdictional question"). But because Mr. Davi~'s claims against the
Madoff Defendants are severed, the Judgment remains interlocutory unles the Court certifies it as
final under Rule 54(b). See HBE Leasing Corp., 48 F.3d at 632.

II.

The Court Should Certify The Judgment Under Rule 54(b)
(3) Of The Ginett Test

B~cause It Meets Factor
I

In deciding on Cinett's third prong, the Court must consider "the i11lterest of sound judicial
administration." Cinett, 962 F.2d at 1095 (quoting CUrlh.f-Wrigbt, 446 U.S. t 8). The Court must
give "proper regard for the duties of both the district court and the appell te court," and "avoid the
possibility that the ultimate dispositions of the claims remaining in the district court could either
moot [the appellate court's] decision on the appealed claim or require [the
issues twice." Itf.

~ppellate court] to decide

11

Future resolution of Mr. Davis's claims against the MadoffDefen ants would have no
bearing on the Second Circuit's review of this Court's conclusions based

0:

forum non conveniens and

SLUSA preemption. The MadoffDefendants reside in New York. Dkt.

~o.

76 ~ 54-57, 128. The

other New York-based defendants, such as JP Morgan Chase & Co. and The Bank of New York
Mellon, did not seek dismissal based on forum non conveniens. No sound rea on exists to speculate that
the MadoffDefendants would take a different approach. To the extent th t a SLUSA preemption
argument is available to the MadoffDefendants, the Second Circuit's revie\v of the Judgment will
i

guide the Court's analysis of any such argument the MadoffDefendants mlight raise. Indeed, as the
1

Court has found, the claims against the MadoffDefendants are severable tom this action. See Dkt.
No. 360 at 2; see also Cullen v. Mar;giotta, 811 F.2d 698, 711 (2d Cit. 1987).

J

ccordingly, consideration

of sound judicial administration counsels in favor of granting certification: nder Rule 54(b). See

Cinell, 962 F.2d at 1095 (affirming a Rule 54(b) certification because the cljims are severable).

The llonorable Richard M. Bennan
January 5, 2012
Page 4
Plaintiff desires to proceed with an appeal, and believes that his a9peal will likely prevail on
the merits. See Assured Guar. (UK) Ltd vJ.P. Morgan Inv. Mgmt. In"., No. 02b, 2011 NY Slip Op.
!

9162, at *6 (N.Y. Dec. 20,2011) (rejecting the so-called "Martin Act preetPtion")' Because a Rule
54(b) certification will allow immediate appellate review of the Judgment, rhe Court should find that
there is no just reason to delay entry of final judgment with respect to the Fismissed Defendants.

See Cinett, 962 F.2d at 1095 (finding that "undue hardship" on the parties jbstifies a Rule S4(b)
certification). No party will be prejudiced by immediate appellate review

~f the Judgment.
i

Finally, the Court may issue a Rule 54(b) certification slla sponte. Cjmbined Bronx Amusements,
1m: v. lVarnerBros. Pictures, Inc., 132 F. Supp. 921 (S.D.N.Y.1955). The poliby promoting "just,

speedy, and inexpensive determination of every action" justifies entry of fila! judgment sua sponte.

See FED. R. CI\'. P. 1.

.

Accordingly, Mr. Davis respectfully requests that the Court hold a Fre-motion conference
for Mr. Davis's anticipated motion to amend the Judgment or, in the alterl1ative, amend the
Judgment stla sponte.

l:YO~~
Francis A. Bottini, Jr.
o

cc:

All counsel of record (bye-mail)

I.

J.M ":::)

SO 01¥-RE: ":':>
Date: t
,"
15:.5f;.lN~ 11. Q.,wtllttuJ
Ric 'ard M. Berman, U.S.D.J.